Geoffrey Martin Welch v. State

• Court: Court of Appeals of Texas
• Decided: April 7, 2009
• Docket: 14-08-00254-CR
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed April 7, 2009

Affirmed and Memorandum Opinion filed April 7, 2009.

In The

Fourteenth Court of Appeals

____________

NO. 14-08-00253-CR

NO. 14-08-00254-CR

GEOFFREY MARTIN WELCH, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 405th District Court

Galveston County, Texas

Trial Court Cause No. 05CR3368; 05CR3369

M E M O R A N D U M   O P I N I O N

Geoffrey Martin Welch appeals his convictions for aggravated assault with a deadly weapon.  Appellant pleaded nolo contendere to the charges.  The trial court found appellant guilty in both cases, and the jury assessed concurrent four-year sentences in the Institutional Division of the Texas Department of Criminal Justice.  In four issues, appellant contends (1) the indictments and the evidence were legally insufficient; (2) the trial court erred in finding appellant knowingly and intelligently entered his plea of nolo contendere and failed to withdraw his plea when appellant made an alleged contradictory statement; and (3) he received ineffective assistance of counsel.  We affirm.

I.  Background

Foster Sayles and his wife Rodora were walking on the Seawall in Galveston one evening when Sayles heard a screech and saw a vehicle in the left lane swerve into the right lane.  He witnessed the vehicle turn sideways and slide down the Seawall, heading toward them.  Sayles and his wife were struck by the vehicle and landed on the sand.  When the vehicle came to rest, the front of the car was in the sand and the back end was resting against the Seawall.  Sayles sustained a fracture to his right eye socket; his wife had multiple injuries requiring nearly a month in intensive care, followed by three months of therapy.  She passed away a year after returning home.^[1] 

Appellant was the driver of the vehicle.  Officer John Thorn testified that appellant initially told him his left front tire blew out, causing the vehicle to slide off the Seawall.  Appellant also told a witness at the scene that there must have been something mechanically wrong with the car and that he overcompensated for it.  Appellant later gave a written statement with details of the incident and confirmed those details at trial.  In his statement, appellant recounted that he had several passengers in the car and that one had brought marijuana.  Appellant admitted to partaking of the marijuana cigarette twice.  He stated that he was driving eastbound on the Seawall when a song came on and he started Ayoking.@  Appellant described Ayoking@ as driving from lane to lane to the music.  When he noticed the car pulling left, appellant pulled hard to the right.  He applied the brakes and the car began to slide out of control.  Officer Jeremy Smart, the lead investigation officer, measured the skid marks.  The shortest skid was 129.10 feet and the vehicle was traveling at a minimum speed of 37 miles per hour in a sideways skid.  Edward Licquia, a technician team leader at Sand Dollar Autoplex, testified that the tires were not blown out, and he did not detect any mechanical difficulties that would explain the loss of control.  

Appellant was indicted for aggravated assault with a deadly weapon.^[2]  He pleaded nolo contendere (no contest) to both indictments, and the trial court found him guilty.  In support of probation, several of appellant=s relatives and his boss testified on his behalf at the punishment phase before the jury.  Other testimony showed that appellant had been charged with a Class B misdemeanor for possession of marijuana subsequent to the incident with the Sayleses.

A jury assessed concurrent four-year sentences in the Institutional Division of the Texas Department of Criminal Justice.  At his formal sentencing on January 17, 2008, appellant initially stated that he wished to appeal; then, after consulting with counsel, he withdrew his notice of appeal at the hearing.  Appellant=s trial counsel filed a motion to withdraw as counsel on February 11, 2008, and appellant filed a pro se notice of appeal on the same date.  Trial counsel also stated in the motion for preparation of the reporter=s and clerk=s records without charge filed on March 4, 2008, that he wished to withdraw and requested appointment of appellate counsel.  The trial court held a hearing on March 4, 2008, and granted trial counsel=s motions to withdraw.  On the same date, the trial court ordered the preparation of the records without charge and appointed appellate counsel.

II.  Analysis

A.  Legal Sufficiency

In his first issue, appellant contends that (1) the indictments are legally insufficient because they do not allege acts that demonstrated reckless conduct and (2) the evidence is legally insufficient to sustain his conviction because the State did not prove any act of recklessness.^[3] 

Appellant raises his objection to the substance of the indictments for the first time on appeal.  Texas Code of Criminal Procedure article 1.14(b) provides:

If the defendant does not object to a defect, error, or irregularity of form or substance in an indictment or information before the date on which the trial on the merits commences, he waives and forfeits the right to object to the defect, error, or irregularity and he may not raise the objection on appeal or in any other post conviction proceeding.

Tex. Code Crim. Proc. Ann. art. 1.14(b) (Vernon 2005).  The Court of Criminal Appeals has addressed the issue of whether an appellant may raise an objection to a charging instrument for the first time on appeal when the charging instrument did not set forth the reckless behavior.  In Studer v. State, Studer was charged by information with the misdemeanor offense of indecent exposure.  Studer v. State, 799 S.W.2d 263, 264 (Tex. Crim. App. 1990).  He pleaded nolo contendere, and the trial court assessed punishment.  Id.  On direct appeal, Studer alleged for the first time that the information was fatally defective because it failed to allege the act or acts relied upon to constitute recklessness.  Id. at 264-65.  The Court of Criminal Appeals held that while the information failed to allege the acts relied upon to constitute recklessness, it was, on its face, an information as contemplated by Article V, section 12 of the Texas Constitution, which sets out the definitions for an indictment and an information.  Id. at 273.  Because Studer failed to make any pre-trial objection to the substantive error, it was waived.  Id. 

The Court of Criminal Appeals recently addressed this issue again in Teal v. State.  In Teal, the Court stated the test for the constitutional sufficiency of a particular charging instrument as follows: ACan the district court and the defendant determine, from the face of the indictment, that the indictment intends to charge a felony or other offense for which a district court has jurisdiction?@  Teal v. State, 230 S.W.3d 172, 181-82 (Tex. Crim. App. 2007) (holding appellant forfeited right to object to indictment not containing mens rea requirement because he did not object before the date of trial). 

Here, the indictments to which appellant pleaded no contest allege that Geoffrey Martin Welch

on or about the 12^th day of February, A.D., 2005 . . . did then and there while [he] was driving and operating a motor vehicle in a public place, recklessly cause bodily injury to Rodora Sayles by:

1.  swerving said motor vehicle from lane to lane;

2.  failing to timely apply the brakes to said motor vehicle in order to avoid the possibility of a collision with the person of Rodora Sayles;

3.  driving said motor vehicle at too great a rate of speed;

4.  failing to turn said motor vehicle to avoid the collision with the person of Rodora Sayles;

5.  failing to maintain proper control of said motor vehicle;

6.  driving said motor vehicle on a pedestrian walkway and

7.  smoking marihuana while driving said motor vehicle[.]. . .

Which acts and omissions, singularly and or [sic] in combination with the others, resulted in the motor vehicle driven and operated by [appellant] to collide with the person of Rodora Sayles thereby recklessly causing bodily injury to [her].  And [appellant] during the commission of the offense alleged above did then and there use a deadly weapon, to wit: a motor vehicle[.]

The indictment in the second cause number is identical save the victim=s nameCFoster Sayles.  The two indictments charged appellant with the offense of aggravated assault for each victim, which is a felony.  Tex. Penal Code Ann. '' 22.01(a)(1), 22.02(a)(2), (b) (Vernon 2003) (AA person commits an offense if the person . . . recklessly causes bodily injury to another . . . and the person uses or exhibits a deadly weapon during the commission of the assault.  An offense under this section is a felony of the second degree . . . .@).  Appellant has waived his complaint of the substance of the indictments to which he pleaded no contest by failing to object prior to the day of trial.  Teal, 230 S.W.3d at 182. 

Moreover, despite appellant=s contention, the indictments to which he pleaded no contest contain acts relied upon to constitute recklessness.  Generally, an indictment that tracks the words of a statute is legally sufficient.  Lewis v. State, 659 S.W.2d 429, 431 (Tex. Crim. App. 1983).  When Arecklessness@ is an element of an offense, the State must allege, with reasonable certainty, the act or acts relied upon to constitute recklessness.  Tex. Code Crim. Proc. Ann. art. 21.15 (Vernon 1989).  Indeed, it is never sufficient Ato allege merely that the accused, in committing the offense, acted recklessly . . . .@  Id.; Stadt v. State, 120 S.W.3d 428, 441 (Tex. App.CHouston [14th Dist.] 2003), aff=d on other grounds, 182 S.W.3d 360 (Tex. Crim. App. 2005).

Here, the indictments to which appellant pleaded no contest alleged appellant recklessly caused bodily injury to the Sayleses by swerving his motor vehicle from lane to lane, failing to timely apply the brakes to the motor vehicle in order to avoid the possibility of a collision with the Sayleses, driving the motor vehicle at too great a rate of speed, failing to turn the motor vehicle to avoid the collision with the Sayleses, failing to maintain proper control of his motor vehicle, driving his motor vehicle on a pedestrian walkway, and smoking marihuana while driving his motor vehicle.  The indictments put appellant on notice that the State was seeking convictions for aggravated assault.  See Tex. Penal Code Ann. '' 22.01(a)(1), 22.02(a)(2), (b) (Vernon 2003); Stadt, 120 S.W.3d at 441.  They also alerted appellant to the acts upon which the State planned to rely to prove he acted Arecklessly.@  See Tex. Code Crim. Proc. Ann. art. 21.15; Stadt, 120 S.W.3d at 441-42.  Therefore, these indictments were sufficient.  Stadt, 120 S.W.3d at 442 (holding indictment sufficient when it alleged appellant recklessly caused the death of the complainant by operating his vehicle at an unreasonable speed, failing to keep a proper lookout, failing to maintain a single lane of traffic, and changing lanes unsafely). 

While appellant contends that (2) failing to timely apply the brakes to said motor vehicle in order to avoid the possibility of a collision with the person of Rodora Sayles, (4)  failing to turn said motor vehicle to avoid the collision with the person of Rodora Sayles, (5) failing to maintain proper control of said motor vehicle, and (6) driving said motor vehicle on a pedestrian walkway were consequences of appellant=s actions rather than reckless behavior under his control, he does not make the same argument for (1) swerving said motor vehicle from lane to lane, (3) driving said motor vehicle at too great a rate of speed, and (7) smoking marihuana while driving said motor vehicle.  Appellant admitted in a statement to police and at trial that he was Ayoking@ or driving from lane to lane while listening to a song.  At trial, he stated that he had swerved once and the car went too far left and he overcorrected to the right.  He also admitted to smoking marihuana while driving.  Salustino Ordonez, a passenger in the car, testified that they were traveling about 45 to 50 miles per hour and there was some indication during his testimony that the speed limit on the road was 45 miles per hour.  If appellant thought the indictment was defective for failing to properly allege reckless behavior, he should have challenged the indictment before trial.  Teal, 230 S.W.3d at 182.

Appellant also contends the evidence is not legally sufficient to prove that he acted recklessly.  Appellate standards of review for legal and factual sufficiency of the evidence do not apply to felony cases where a defendant enters a plea of guilty or nolo contendere.  See Ex parte Martin, 747 S.W.2d 789, 791 (Tex. Crim. App. 1988).  Under Texas law, when a criminal defendant waives a jury and pleads guilty or nolo contendere, the State is only required to introduce sufficient evidence to show the defendant=s guilt.  See Tex. Code Crim. Proc. Ann. art. 1.15 (Vernon 2005); Ex parte Martin, 747 S.W.2d at 791-93.  The State need not introduce evidence to show the defendant=s guilt beyond a reasonable doubt.  See Ex parte Martin, 747 S.W.2d at 791-93.  Evidence is sufficient to show guilt if it embraces every essential element of the offense charged.  Stone v. State, 919 S.W.2d 424, 427 (Tex. Crim. App. 1996).

Article 1.15 does not apply, however, when a guilty plea is entered in the presence of the jury, that is to say, the State is not required to introduce evidence to demonstrate the defendant=s guilt.  Wilkerson v. State, 736 S.W.2d 656, 659 (Tex. Crim. App. 1987) (citing Texas Code of Criminal Procedure article 26.14, which also applies to pleas of nolo contendere).  A plea of nolo contendere has the same legal effect as a guilty plea in a criminal prosecution.  Tex. Code Crim. Proc. Ann. art. 27.02(5) (Vernon 2006); Stone v. State, 919 S.W.2d 424, 426 (Tex. Crim. App. 1996).  In this case, appellant pleaded no contest to both indictments before the trial judge in open court.  He waived his right to trial by jury on the guilt/innocence phase in open court and in writing.  The trial court found appellant guilty on both indictments.  The following day, the trial court impaneled a jury for the punishment phase.  After the jury was selected and the prosecutor gave an opening statement, the prosecutor read the indictment for Foster Sayles and incorporated Rodora Sayles.  The trial court asked appellant for his plea, and appellant answered, ANo contest.@  Although appellant initially pleaded no contest to the court, he superseded his initial plea by subsequently pleading no contest before the jury.  Helton v. State, 886 S.W.2d 465, 466 (Tex. App.CHouston [1st Dist.] 1994, pet. ref=d) (holding plea of guilty before jury superseded plea of guilty before trial court, therefore, it was not necessary for State to introduce evidence showing appellant=s guilt).  The no-contest plea before the jury is conclusive as to appellant=s guilt, and the sufficiency of the evidence may not be questioned on appeal.  See id.

Even if article 1.15 applied, appellant=s contention lacks merit because the evidence may be stipulated to by the defendant.  See Tex. Code Crim. Proc. Ann. art. 1.15 (Vernon 2005) (AThe evidence may be stipulated if the defendant in such case consents in writing, in open court, to waive the appearance, confrontation, and cross-examination of witnesses, and further consents either to an oral stipulation of the evidence and testimony or to the introduction of testimony by affidavits, written statements of witnesses, and any other documentary evidence in support of the judgment of the court.@)  Here, appellant entered into the following stipulation:

I freely and voluntarily plead NOLO CONTENDERE (NO CONTEST) to the indictment or information by which I have been charged in this cause and agree and stipulate that the elements of the offense and the facts alleged therein constitute the evidence in this case.

In Scott v. State, the First Court of Appeals encountered a nearly identical stipulation and found that, while the stipulation was no model, it was Athe functional equivalent of a stipulation embracing every element of the offense charged.@  Scott v. State, 945 S.W.2d 347, 348 (Tex. App.CHouston [1st Dist.] 1997, no pet.).  The court reasoned that, by so stipulating, Scott agreed that the evidence would show the allegations in the indictment.  See id. Therefore, if the indictment embraces the required elements of the offense of aggravated assault, there is sufficient evidence to support the plea. 

A person commits aggravated assault if he . . . recklessly causes bodily injury to another . . . and he uses or exhibits a deadly weapon during the commission of the assault.  Tex. Penal Code Ann. '' 22.01(a)(1), 22.02(a)(2) (Vernon 2003).  The indictments to which appellant pleaded no contest alleged appellant recklessly caused bodily injury to the Sayleses, listing the acts upon which the State was relying to constitute recklessness, and used a deadly weapon, to wit: a motor vehicle.  Because these indictments embrace every element of the offense charged, the stipulation is sufficient to support appellant=s conviction for aggravated assault.  Accordingly, we overrule appellant=s first issue.

B.      No-Contest Plea

In his second issue, appellant argues that the trial court erred in finding that appellant knowingly and intelligently entered his plea.  Specifically, appellant claims that the record gives no indication that appellant was aware of the implications of Texas Code of Criminal Procedure article 42.12, section 3g, or that he knew the elements of recklessness.  Appellant also contends that the trial court erred by failing to sua sponte withdraw his plea.

The waiver of the right to a plea of not guilty is surrounded by constitutional and statutory procedural protections.  Mendez v. State, 138 S.W.3d 334, 344 (Tex. Crim. App. 2004).  Due process of law requires that waivers of constitutional rights be voluntarily, knowingly, and intelligently done with sufficient awareness of the relevant circumstances and likely consequences.  Brady v. U.S., 397 U.S. 742, 748, 90 S. Ct. 1463, 1469, 25 L. Ed. 2d 747 (1970); Mendez, 138 S.W.3d at 344.  Before accepting a plea of nolo contendere, a trial court is required to admonish the accused on a number of issues.  See Tex. Code Crim. Proc. Ann. art. 26.13 (Vernon Supp. 2008).  Substantial compliance with article 26.13 is sufficient, unless the defendant affirmatively shows that he was not aware of the consequences of his plea and that he was misled or harmed by the admonishments.  See id. art. 26.13(c).  A record reflecting that the trial court properly admonished the defendant as to the consequences of his plea is prima facie evidence that the defendant entered a knowing and voluntary plea.  Nicholas v. State, 56 S.W.3d 760, 769-70 (Tex. App.CHouston [14th Dist.] 2001, pet. ref=d).  Upon a prima facie showing of voluntariness, the defendant bears the burden of showing that he entered the plea without knowing its consequences.  Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998).  Once an accused attests that he understands the nature of his plea and that it was voluntary, he has a heavy burden to prove on appeal that his plea was involuntary.  Edwards v. State, 921 S.W.2d 477, 479 (Tex. App.CHouston [1st Dist.] 1996, no pet.).  On appeal, we presume the regularity of the judgment and proceedings in the trial court, and the defendant bears the burden of overcoming this presumption.  Nicholas, 56 S.W.3d at 770.

Before accepting appellant=s no-contest plea, the trial court admonished appellant on the range of punishment, his constitutional right to trial by jury on the guilt/innocence phase, and his right to have the indictments read.  He then asked appellant whether he had reviewed the plea admonishments, waivers, and stipulations with his attorney, whether he understood everything his counsel reviewed with him, whether he had any questions, whether he was satisfied with counsel=s representation, and whether he was entering his plea freely and voluntarily.  Appellant responded that he had no questions and answered in the affirmative to the other inquiries.  The trial court also asked appellant=s trial counsel whether he thought appellant was mentally competent to stand trial, and trial counsel responded affirmatively.  Appellant then entered his plea of no contest.  The State showed appellant the written APlea Admonishments, Waivers, and Stipulations@ form and asked whether he had reviewed the form with his attorney and whether he freely, knowingly, and voluntarily signed the written plea, to which appellant responded affirmatively.  The State also asked whether appellant understood that his signature would be the evidence against him and whether he understood everything they were doing at the hearing, to which appellant again responded affirmatively.  The State admitted the written APlea Admonishments, Waivers, and Stipulations@ and the court found him guilty.          

The written APlea Admonishments, Waivers, and Stipulations@ listed the offense of which appellant was charged, ranges of punishment generally, plea-bargain and citizenship implications, permission to appeal, and deferred adjudication.  If admonitions are in writing, the court must receive a statement signed by the defendant and the defendant=s attorney that he understands the admonitions and is aware of the consequences of his plea.  Tex. Code Crim. Proc. Ann. art. 26.13(d) (Vernon 2009).  The form contains the signatures of both appellant and his trial counsel.    

The record in this case reflects that the trial court substantially complied with article 26.13.  Because the trial court properly admonished appellant prior to accepting his no-contest pleas, the burden shifts to appellant to show that he pleaded no contest without understanding the consequences of doing so.  Martinez, 981 S.W.2d at 197.  Appellant has failed to meet his burden.  While he concedes that trial counsel may have discussed with him the implications of Texas Code of Criminal Procedure article 42.12, section 3g, his appellate counsel contends that it is not clear whether appellant understood it.  Appellant also claims that trial counsel did not discuss the application of lesser-included charges and Aother significant elements of defensive strategy.@  However, the record shows that he went over the APlea Admonishments, Waivers, and Stipulations@ form with his attorney; when asked by the trial court whether he understood everything counsel had gone over with him, he stated that he did.  He also told the trial court that he had no questions and that he was entering his plea of no contest freely and voluntarily.  The written document, signed by appellant, states that he understood all of the written waivers, stipulations and motions in connection with his plea and that he was signing it freely and voluntarily.  Because appellant did not meet his burden of showing that he entered the plea without knowing its consequences, we overrule his complaint on appeal.       

Appellant also contends that the trial court should have sua sponte withdrawn his no-contest pleas when he testified to the following at the punishment phase:

Q: When you were driving down the Boulevard and you were sitting in the car and you started turning that steering wheel with the music as you said in that statement to make the car swing, did you have any idea about how that car could suddenly slide sideways 129 feet?

A: No, sir, I didn=t.

Q: Is that a risk that you were aware of?

A: No, I wasn=t.

Q: But you are now?

A: Yes, sir.

The trial court is not required to withdraw a defendant=s guilty plea on its own motion.  Mendez, 138 S.W.3d at 350.  After a trial court has fulfilled its duties to inform the defendant of his waivable-only rights when pleading guilty or nolo contendere, and a defendant makes a valid waiver of those rights, the defendant must take some affirmative action Ato don the armor again.@  Id.  Because appellant did not seek to withdraw his no-contest pleas at any time, he cannot complain for the first time on appeal that the trial court did not do it for him.  Id. 

Accordingly, we overrule appellant=s second issue.

C.      Alleged Deprivation of Counsel During Period for Filing Motion for New Trial and Motion in Arrest of Judgment

In his third issue, appellant contends the trial court erred when it failed to appoint counsel during the time for filing a motion for new trial and a motion in arrest of judgment.^[4]

A motion in arrest of judgment is a defendant=s oral or written suggestion to the trial court that the judgment rendered was contrary to law.  Tex. R. App. P. 22.1.  The motion may be based on the ground that the charging instrument is subject to an exception on substantive grounds, that in relation to the charging instrument a verdict is substantively defective, or that the judgment is invalid for some other reason.  Tex. R. App. P. 22.2.  The Texas Court of Criminal Appeals has made it clear that, under article 1.14(b) of the Code of Criminal Procedure, a defect in a charging instrument is waived unless raised before trial.  See Teal v. State, 230 S.W.3d 172, 177-82 (Tex. Crim. App. 2007).  Therefore, a party may not raise an objection to a substantive defect in a charging instrument for the first time in a motion in arrest of judgment.  See Tex. Code Crim. Proc. Ann. art. 1.14(b) (Vernon 2005); Crittendon v. State, 923 S.W.2d 632, 634 (Tex. App.CHouston [1st Dist.] 1995, no pet.) (stating that, with advent of article 1.14(b), motion in arrest of judgment is confined to reurging complaints about indictments made by timely objection prior to trial).  

In this case, appellant did not file a pre-trial motion to quash the indictment.  Under article 1.14(b), appellant could not have raised the substantive defect of which he complains for the first time in a motion in arrest of judgment.  Therefore, even if appellant had filed a motion in arrest of judgment, his challenge to the indictment was waived.

A motion for new trial must be filed no later than 30 days after the trial court Aimposes or suspends sentence in open court.@  Tex. R. App. P. 21.4(a).  This 30-day period in which to file a motion for new trial is a critical stage of a criminal proceeding and a defendant has a constitutional right to counsel during that period.  Cooks v. State, 240 S.W.3d 906, 908 (Tex. Crim. App. 2007).  To prevail on a claim of deprivation of counsel, appellant must affirmatively show that he was not represented by counsel during that period.  See Oldham v. State, 977 S.W.2d 354, 363 (Tex. Crim. App. 1998).  There is a rebuttable presumption that a defendant=s trial counsel continued to adequately represent the defendant during this critical stage.  Cooks, 240 S.W.3d at 911.  If a defendant rebuts this presumption with evidence that he was deprived of adequate counsel during this stage, the error is subject to a harmless error or prejudice analysis.  Id. 

The trial court imposed appellant=s sentence for each cause number on January 17, 2008.  At the sentencing, appellant stated that he wished to appeal and that he did not think he could afford an attorney on appeal.  The trial court told trial counsel the following:  AAnd, also, after the victim impact statement, Mr. Coltzer, I will have to have you fill out a Notice of Appeal and then the Defendant is going to have to fill out a pauper=s oath to appoint an attorney on the appeal.@  Appellant then decided to withdraw his notice of appeal after discussing it with his trial counsel; he informed the trial court of this decision at the hearing.  Appellant=s trial counsel filed a motion to withdraw on February 11, 2008.  In his motion, appellant=s trial counsel stated that he was appointed by the court to represent appellant at trial and did so through the sentencing, and that he felt appellant Amay benefit from the fresh and untrammeled perspective of another attorney.@  On the same day, appellant filed a pro se notice of appeal.  Appellant=s trial counsel then filed a motion for preparation of the record without charge and appointment of appellate counsel on March 4, 2008.  The trial court held a hearing on the motion with appellant and trial counsel present and granted trial counsel=s motion to withdraw, ordered the records prepared without charge, and appointed appellate counsel.

Appellant cites Texas Code of Criminal Procedure article 1.051(c) for the proposition that the trial court erred by not appointing appellate counsel in the time period proscribed by the statute when appellant=s trial counsel filed his motion to withdraw on February 11, 2008.^[5]  Texas Code of Criminal Procedure 1.051(c), in pertinent part, states:

Except as otherwise provided by this subsection, if an indigent defendant is entitled to and requests appointed counsel and if adversarial judicial proceedings have been initiated against the defendant, a court or the courts= designee authorized under Article 26.04 to appoint counsel for indigent defendants in the county shall appoint counsel as soon as possible, . . . but not later than the end of the first working day after the date on which the court or the courts= designee receives the defendant=s request for appointment of counsel [in a county with a population of 250,000 or more].

Tex. Code Crim. Proc. Ann. art. 1.051(c) (Vernon 2005).  The legislature has also established that a criminal defendant is entitled to counsel during the first appeal.  Tex. Code Crim. Proc. Ann. art. 1.051(d) (Vernon 2005).  The Court of Criminal Appeals has stated that entitlement extends to the period for filing a motion for new trial because it is in the time period between trial and appeal.  Cooks v. State, 240 S.W.3d 906, 910 n.3 (Tex. Crim. App. 2007). 

Trial counsel, whether retained or appointed, Ahas the duty, obligation and responsibility to consult with and fully to advise his client concerning meaning and effect of the judgment rendered by the court, his right to appeal from that judgment, [and] the necessity of giving notice of appeal and taking other steps to pursue an appeal . . . .@  Ex parte Axel, 757 S.W.2d 369, 374 (Tex. Crim. App. 1988).  A rebuttable presumption exists that the attorney discussed the merits of the motion for new trial with the appellant, and the appellant considered and rejected it.  Oldham, 977 S.W.2d at 363.  Appellant=s bare contention that he was not represented since February 11, 2008 is not enough to rebut the presumption of adequate assistance.  See Smith v. State, 17 S.W.3d 660, 662-63 (Tex. Crim. App. 2000) (holding fact that appellant filed pro se notice of appeal and indigency, letter of assignment from trial court to appellate court stated attorney of record on appeal was Ato be determined,@ and appellant appeared without counsel when signing a pauper=s oath and requesting new counsel was not enough to rebut presumption); Oldham, 977 S.W.2d at 362-63 (holding fact that appellant filed pro se notice of appeal and indigency and letter of assignment from trial court to appellate court stated attorney of record on appeal was Ato be determined@ was not enough to rebut presumption).

Although appellant=s trial counsel filed a motion to withdraw on February 11, 2008, it was not acted upon by the trial court until March 4, 2008.  Therefore, trial counsel was still the attorney of record through the time for filing a motion for new trial.  Appointed counsel remains as the defendant=s counsel for all purposes until expressly permitted to withdraw, even if the appointment is for trial only.  Ward v. State, 740 S.W.2d 794, 796 (Tex. Crim. App. 1987).  While trial counsel indicates in his motion to withdraw on February 11 that he had fulfilled his duty by representing appellant through sentencing, and the trial court stated at the sentencing that the defendant would need to fill out a pauper=s oath to appoint an attorney on appeal if he chose to appeal, trial counsel continued to act as appellant=s attorney by filing a motion for preparation of the records without charge and appointment of appellate counsel, and acted as appellant=s counsel at the hearing on March 4.  In addition, appellant filed a pro se notice of appeal.  Filing a pro se notice of appeal is an indication that appellant was made aware of at least some of his appellate rights.  Id. at 363.  There is nothing in the record to suggest that appellant was not counseled by his attorney regarding the merits of a motion for new trial.  Smith, 17 S.W.3d at 663; Oldham, 977 S.W.2d at 363.  Appellant has not overcome the presumption that he was adequately represented by counsel during the time for filing a motion for new trial.  Therefore, appellant=s third issue is overruled.

D.  Ineffective Assistance of Counsel

In his fourth issue, appellant contends that he received ineffective assistance of counsel because his trial counsel (1) failed to file a motion for new trial or motion in arrest of judgment; (2) advised appellant to plead nolo contendere and waive a jury on the guilt/innocence phase of trial; (3) failed to challenge the indictments; (4) failed to urge lesser-included offenses; (5) made prejudicial comments during voir dire; and (6) had a conflict based on self-interest.

In reviewing claims of ineffective assistance of counsel, we apply a two-prong test.  See Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005) (citing Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)).  To establish ineffective assistance of counsel, appellant must show by a preponderance of the evidence that (1) his trial counsel=s representation was deficient in that it fell below the standard of prevailing professional norms, and (2) there is a reasonable probability that, but for counsel=s deficiency, the result of the trial would have been different.  Id.

An accused is entitled to reasonably effective assistance of counsel.  King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983).  When evaluating a claim of ineffective assistance, the appellate court looks to the totality of the representation and the particular circumstances of each case.  Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).  There is a strong presumption that counsel=s actions and decisions were reasonably professional and were motivated by sound trial strategy.  See Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001).  To overcome the presumption of reasonable professional assistance, A[a]ny allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.@  Thompson, 9 S.W.3d at 813. 

When determining the validity of an ineffective-assistance-of-counsel claim, any judicial review must be highly deferential to trial counsel and avoid the deleterious effects of hindsight.  Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984).  When the record is silent as to the reasons for counsel=s conduct, a finding that counsel was ineffective would normally require impermissible speculation by the appellate court.  Stults v. State, 23 S.W.3d 198, 208 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d).  Absent specific explanations for counsel=s decisions, a record on direct appeal will rarely contain sufficient information to evaluate an ineffective-assistance claim.  See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).  Ordinarily, this kind of record is best developed in a hearing on an application for writ of habeas corpus or a motion for new trial.  Perez v. State, 56 S.W.3d 727, 731 (Tex. App.CHouston [14th Dist.] 2001, pet. ref=d) (citing Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998)).  However, when no reasonable trial strategy could justify trial counsel=s conduct, counsel=s performance falls below an objective standard of reasonableness as a matter of law, regardless of whether the record adequately reflects trial counsel=s subjective reasons for acting as he did.  Andrews v. State, 159 S.W.3d 98, 102 (Tex. Crim. App. 2005). 

If a criminal defendant proves that trial counsel=s performance was deficient, he must still affirmatively prove that he was prejudiced by counsel=s actions.  Thompson, 9 S.W.3d at 812.  This requires the defendant to demonstrate a reasonable probability that the result of the proceeding would have been different if trial counsel had acted professionally.  Id.  A reasonable probability is a probability sufficient to undermine confidence in the outcome.  Mallett, 65 S.W.3d at 63.

Here, appellant did not file a motion for new trial, and the record does not contain evidence of trial counsel=s reasons or strategy regarding the challenged actions.  This court will not speculate as to why trial counsel acted as he did.  See Bone, 77 S.W.3d at 835; Rivera-Reyes v. State, 252 S.W.3d 781, 790 (Tex. App.CHouston [14th Dist.] 2008, no pet.).  Absent evidence in the record, appellant cannot overcome the presumption that counsel=s actions were reasonable and professional.  See Bone, 77 S.W.3d at 833. 

1.  Failure to file a motion for new trial or motion in arrest of judgment

Appellant first contends that trial counsel erred when he failed to file a motion for new trial or a motion in arrest of judgment.  As stated above, the motion in arrest of judgment would not have had merit because appellant did not file a pre-trial motion to quash the indictment.  Under Texas Code of Criminal Procedure article 1.14(b), appellant could not have raised the substantive defect for the first time in a motion in arrest of judgment.  See Tex. Code Crim. Proc. Ann. art. 1.14(b) (Vernon 2005).  With regard to the motion for new trial, as stated above, a rebuttable presumption exists that the attorney discussed the merits of the motion for new trial with appellant, and he considered and rejected it.  Oldham, 977 S.W.2d at 363.  There is nothing in the record to suggest that appellant was not counseled by his attorney regarding the merits of a motion for new trial.  Smith, 17 S.W.3d at 663; Oldham, 977 S.W.2d at 363.  Appellant claims that trial counsel did not notify him of the deadline for filing a motion for new trial; however, the APlea Admonishments, Waivers, and Stipulations@ document that appellant signed reveals that appellant or his counsel crossed out the line stating, AI also waive and give up the 30 days provided in which to file a Motion For New Trial, Motion for Arrest of Judgment and Notice of Appeal.@

2.  Advice on plea and waiving jury on guilt/innocence

Appellant next contends that trial counsel was ineffective when he advised appellant to plead nolo contendere and waive a jury at the guilt/innocence phase of trial.  Appellant must prove that:  (1) the advice given by his attorney was not within the range of competence demanded of attorneys in criminal cases and (2) but for the attorney=s errors, appellant would, with a reasonable probability, not have pled no contest, but would have insisted on going to trial.  Ex parte Moody, 991 S.W.2d 856, 857-58 (Tex. Crim. App. 1999).  A[A] defendant=s claim he was misinformed by counsel, standing alone, is not enough for us to hold his plea was involuntary.@  Fimberg v. State, 922 S.W.2d 205, 208 (Tex. App.CHouston [1st Dist.] 1996, pet. ref=d).

Here, there is no record as to what advice trial counsel gave appellant or how it affected appellant=s decision to plead nolo contendere.  In addition, there is nothing to suggest that the decision not to go to trial was trial counsel=s rather than appellant=s.  If appellant was not guilty but wished to waive his right to a jury trial and plead no contest, trial counsel=s advice to enter a plea of Ano contest@ rather than Aguilty@ would not be incorrect advice and could not support a claim of ineffective assistance of counsel.  See Stone v. State, 919 S.W.2d 424, 426-27 (Tex. Crim. App. 1996).

3.  Failure to challenge the indictment

Appellant claims trial counsel was ineffective for failing to challenge the indictment.  As stated above, the indictments to which appellant pleaded no contest were not defective.  They alerted appellant to the acts upon which the State planned to rely to prove he acted Arecklessly@ and tracked the language of the applicable statutes.  Trial counsel=s failure to file a motion to quash or object to those indictments does not constitute ineffective assistance because the indictments were legally sufficient.  Thacker v. State, 999 S.W.2d 56, 67 (Tex. App.CHouston [14th Dist.] 1999, pet. ref=d).  Trial counsel is not ineffective for failure to make meritless objections.  Id.  In addition, nothing in record shows trial counsel failed to analyze the indictments.

4.  Failure to use lesser-included offenses

Appellant argues that trial counsel was ineffective for failing to urge lesser-included offenses.  Again, the record is silent as to whether trial counsel gave appellant advice regarding lesser-included offenses and how that affected appellant=s plea of nolo contendere.  The record shows that appellant went over the APlea Admonishments, Waivers, and Stipulations@ form with his attorney and when asked by the trial court whether he understood everything counsel went over with him, he stated that he did.  He also told the trial court that he had no questions and that he was entering his plea of no contest freely and voluntarily.

5.  Alleged comments that were prejudicial to his client

Appellant contends that trial counsel was ineffective for making the following comment during voir dire:

He is charged with and has entered the plea of no contest to the charge of having been aware of a risk that he might injure an individual by his conduct.  And yet disregarding his knowledge of that risk, he went forward and that injury resulted.

The comment was made after appellant pleaded Ano contest@ before the jury, and after the trial judge stated on the record that he had found appellant guilty on both indictments.  It appears that counsel was simply paraphrasing the law with regard to reckless conduct.  Moreover, the record is silent as to exactly why trial counsel made the remark and we will not speculate.  Rivera-Reyes v. State, 252 S.W.3d 781, 790 (Tex. App.CHouston [14th Dist.] 2008, no pet.).   

6.  Alleged conflict based on self-interest

Finally, appellant claims that trial counsel had a conflict based on self-interest.  Specifically, appellant alleges that trial counsel=s advice not to pursue an appeal and his alleged lack of representation after sentencing was driven by his own self-interest.  Appellant must show that his trial counsel had an actual conflict of interest, and that the conflict actually colored counsel=s actions.  Acosta v. State, 233 S.W.3d 349, 356 (Tex. Crim. App. 2007). 

Appellant does not state what the conflict of interest is or show that his trial counsel had an actual conflict of interest that colored counsel=s actions.  He alludes to trial counsel=s motion to withdraw, in which counsel stated that he felt appellant Amay benefit from the fresh and untrammeled perspective of another attorney.@  However, as previously stated, appellant=s trial counsel continued to act as appellant=s attorney by filing a motion for preparation of the records without charge and appointment of appellate counsel, and acted as appellant=s counsel at the hearing on March 4 when he was permitted to withdraw.   

Therefore, we overrule appellant=s fourth issue.

Having overruled appellant=s issues, we affirm the trial court=s judgment.

/s/      Adele Hedges

Chief Justice

Panel consists of Chief Justice Hedges and Justices Anderson and Seymore.

Do Not Publish C Tex. R. App. P. 47.2(b).

.

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^[1]  It is unclear from the record what caused her death.

^[2]  Appellant was first indicted on two charges of aggravated assault with a deadly weapon on December 15, 2005, alleging he intentionally, knowingly, or recklessly caused serious bodily injury to Rodora Sayles and Michael Foster by driving an automobile recklessly, while under the influence of marihuana, into them.  Appellant was reindicted on two charges of aggravated assault with a deadly weapon on January 12, 2006, alleging he was driving and operating a motor vehicle in a public place and recklessly caused bodily injury to Rodora Sayles and Foster Sayles.  Appellant pleaded nolo contendere on January 14, 2008.  

^[3]  Appellant claims that the record does not establish which indictments he pleaded no contest to because he waived the reading of the indictments at the plea hearing before the trial court.  However, the reindictments of January 12, 2006, were read on the record before the jury prior to the first witness being called at the punishment phase.  Appellant replied that his plea was Ano contest@ to both indictments and the trial court stated he had found appellant guilty on both indictments.  At no point did appellant indicate that he was confused as to which indictments he was pleading to.

^[4]  Appellant does not request that this Court abate the case to allow him time to file an out-of-time motion for new trial.

^[5]  In his fourth issue, however, appellant states that trial counsel remained his lawyer during the interval between February 11 and February 18, and the motion to withdraw filed on February 11, 2008 did not relieve counsel of his duties.  His claim in his fourth issue, then, is that while trial counsel remained his attorney, he did not notify him of the deadline for filing a motion for new trial.